SC overturns controversial ruling of Allahabad High Court in minor assault case

The Supreme Court has overturned the controversial ruling of the Allahabad High Court, which had concluded that the alleged act of grabbing a minor girl’s breast and loosening the string of her pyjama amounted only to “preparation” and not an attempt to commit rape.

Observing that the High Court had incorrectly applied established principles of criminal law, the apex court reinstated the original summoning order issued by the Special Judge under Section 376 of the IPC read with Section 18 of the Protection of Children from Sexual Offences (POCSO) Act. The Court emphasised that the alleged offence did not progress further solely because of the intervention of third parties and therefore could not be categorised as mere preparation.

"The facts alleged being so, we cannot agree with the finding of the High Court that the allegations only amount to preparation, but not an attempt, towards the commission of the offence of rape. The attempt made by the accused persons appears clearly and inevitably leads us to conclude that, prima facie, a case for invoking the provisions of attempt to commit rape has been made out by the complainant and the prosecution. The impugned judgment, thus, is liable to be set aside on account of the patently erroneous application of the settled principles of criminal jurisprudence."

The verdict was delivered by a three-judge Bench comprising Chief Justice of India Surya Kant, Justice Joymalya Bagchi and Justice N V Anjaria in a suo motu matter initiated last year in response to the High Court’s judgment.

The proceedings arose from a complaint lodged by the minor girl’s mother. Acting on an application under Section 156(3) of the CrPC, the Special Judge (POCSO), Kasganj, had summoned two accused persons. The Allahabad High Court, however, altered the summoning order. It held that the allegations did not constitute an attempt to commit rape and instead directed that the accused be tried under Section 354B of the IPC read with Sections 9 and 10 of the POCSO Act, provisions that attract comparatively lighter punishment.

The High Court drew a distinction between “preparation” and “attempt”, concluding that the facts fell within the former category. The Supreme Court found this reasoning flawed, describing the modification as based on a “patently erroneous” understanding of settled criminal jurisprudence.

While partly allowing a criminal revision plea filed by three accused, Justice Ram Manohar Narayan Mishra of the High Court had observed:

“The allegations levelled against the accused Pawan and Akash and facts of the case hardly constitute an offence of attempt to rape in the case. In order to bring out a charge of attempt to rape the prosecution must establish that it had gone beyond the stage of preparation. The difference between preparation and actual attempt to commit an offence consists chiefly in the greater degree of determination,”

Rejecting this view, the Supreme Court underscored that the complaint clearly indicated a pre-determined intention to commit rape and that the execution of such intent had already begun. Referring to the material placed before the court, the Bench observed:

"A bare perusal of these allegations leaves no modicum of doubt that the case sought to be made out is that the accused persons proceeded with a pre-determined intent to commit an offence under Section 376 of the IPC on her. In light of the overt averments recorded in the Criminal Application filed by the complainant-mother under Section 156(3) of the Code of Criminal Procedure, 1973, it becomes readily apparent that from the story of the complainant, the mens rea involved had begun to be executed. This understanding is bolstered by the High Court's own recording that the only reason why the crime was not furthered was the above-mentioned intervention by third-party witnesses,"

As a result, the trial court’s original summoning order was restored. The Supreme Court also affirmed paragraph 5 of its interim order dated December 8, 2025, clarifying that the trial must proceed strictly in accordance with the original summoning order, without prejudice to either party. It further clarified that none of its observations should be treated as a conclusive opinion on the guilt of the accused.

Earlier, on March 26 last year, a Bench comprising Justice B R Gavai and Justice A G Masih had stayed certain portions of the High Court’s judgment after taking suo motu cognisance of the matter. The Bench had strongly criticised the High Court’s reasoning, describing it as “shocking” and “insensitive”.

Subsequently, on December 8, 2025, the Supreme Court stayed the entire High Court judgment and directed that if the trial were to continue, it should proceed on the basis that the accused had been summoned under Section 376 read with Section 511 of the IPC along with Section 18 of the POCSO Act. The suo motu proceedings were initiated after a letter was sent by Senior Advocate Shobha Gupta on behalf of the NGO ‘We the Women of India’.
(With Live Law Inputs)